주취감면배제에 대한 형법 제10조 제3항 적용에 관한 연구 -불가분적 연관설 규명을 통한 가칭 위험성범죄의 책임응보론 구축-

Abstract

This thesis proposes to apply the actio libera in causa(alic) of the clause 3, Article 10 of Korean Criminal Law to the sexual crime under the defected responsibility ability through alcohol or drugs for the following reasons. At first because it is worried about that the intention of the Special Act to govern the sexual crime by the severe punishment could be faded as the excluding article of the penalty mitigation-and-exemption of the Special Act is not based on the clause 3, Article 10 of Korean Criminal Law which is compulsory but based on the prevention-goal which is discretionary. Secondly because it is worried about that the gender differentiation created in sexual crime must be reproduced in a way that is detrimental to the major female victims with a consequence that a majority of major male attackers compared with a small minority of female attackers in the intoxicated sexual crime have a benefit of the penalty mitigation-and-exemption by the the clause 1 and 2, Article 10 of Korean Criminal Law. And the basis of the just retribution in this case is founded in the way that alic affords a basis to raise the penalty by imputing the responsibility completely to the alic deliberate offense or the alic negligence criminal as well as provides a basis for excluding the penalty mitigation-and-exemption by the clause 1 and 2, Article 10 of Korean Criminal Law from the corresponding act to the elements of a crime while unfit. For the establishment of this basis, this thesis tries to take note that the likelihood of detecting the dangerousness and risk-prediction increases in the case of sexual crime while unfit, unlike a common criminal while unfit, because of the close relation between drinking and sexual crimes. This thesis also tries to demonstrate that alic, especially through ‘the double-acts structure of the alic’ and ‘the inseparable relation between the act of cause and the act of follow-up’, forms a basis for imputing the complete responsibility to the person who carries the elements of a sexual crime while unfit caused by one’s own free will. Therefore this thesis claims that the responsibility beyond the simple negligence-responsibility for the result of self-selection can be recognized in the case of not only the deliberation alic but also the negligence alic and finally that the aggravation to the alic negligence criminal is possible, by demonstrating that the inseparable relation theory qualifies the function to signify the deliberation or negligence for the ‘free will’of the alic and provides the basis to unloose the ‘double-functions of the deliberation or negligence’. This thesis set a goal to revise the legal basis from current discretionary provision to the compulsory provision in the short term and, concurrently, proposes the legislation of the so-called ‘Intoxicated Gender Crime’ on the Criminal Law in the long term. These arguments are also able to function as theoretical grounds for legislative bills and national petition which attempt to eliminate ‘the alcohol or drug cases’ from the clause 1 and 2, Article 10 of Korean Criminal Law.